New bands often come to me for legal services and say "We want to do things the 'right way' this time around. Where do we start?" While there are a myriad of answers to this question, and I customize a legal plan with each band I work with, there are a few legal "foundations" I recommend to almost every band. First and foremost, a band agreement. It's basically the music industry version of a partnership agreement, but it sets everything out in writing, up front. I hate to be morbid, but the odds are stacked against bands - almost all of them break up. Of course, every band I work with assures me this will not be the case with their band... but I'm a lawyer. I'm a realist. You call a lawyer for only two reasons: 1) to prevent shit from hitting the fan (or hitting the fan in a better way); or 2) to clean up all the shit just just hit the fan. As a so-called "transactional" attorney, I work with numero uno; I try to prevent things from actually blowing up in people's faces should anything go awry.
That being said, I advise bands to plan (oh god) for the worst - what will happen to your songs "if" you break up? What will happen to your band account? And, most importantly, what will happen to your band name? If you don't file a proper trademark for your band name and designate who owns it (I usually advise bands form a business entity and let the entity hold the trademark) this could happen to you. Osbourne and other members of Black Sabbath, like many bands, placed their trust in one another and didn't file a trademark for "Black Sabbath" while Ozzy was in the band. Years later, Iommi filed the mark under his own name. Scrupulous? Probably not. However, both men now find themselves in a pickle and are headed for the court house.
And they're not the first. Axel Rose owns the rights to the "Guns N' Roses" name, which enabled him to form a completely different name under the same name (and gives him exclusive control over when and where the mark will be displayed and what it will be associated with). Pink Floyd were involved in a bitter legal battle after Roger Waters left and wanted to take the name with him (the remaining members ultimately got to keep the name). The list goes on and on. I can't stress enough how important it is to plan for these thing upfront!
Many bands claim it's beyond their budget to do some of these things, but you must think about your band as an investment. I know folks don't like to mix art and business... but it IS your business. If it's not, you're never going to be able to survive as a "professional musician." It costs $275 to file a trademark. Let me tell you, litigation is NOT $275! Plan upfront = insurance policy. Of course, I would recommend hiring a competent attorney to file the mark for you, but if can't do that, you can at least google "how to file a trademark" and take a whack at it yourself. Just please, please do it. If your band goes down, don't you want to go down in a bad-ass-rock-star-flame-of-glory instead of a bitter legal tiff? Law suits are so not metal.
As a final note, Lawyers 4 Musicians (http://lawyers4musicians.com) posted this great blog about trademarks. It's a must read.
Monday, June 1, 2009
Wednesday, May 27, 2009
Coldplay v. Joe Santriani
Even if you don't follow entertainment or music law, you're probably aware that Coldplay is being sued by guitarist Joe Santriani, who alleges that Coldplay's "Viva La Vida" infringes on his song, "If I Could Fly."
I'm not quite ready to comment on this from a legal standpoint, but I wanted to post some of the side by side comparisons of the song and some commentary from music professionals (who have also posted videos on youtube giving their opinions). It's been postured that these videos could be Coldplay's downfall, and even possibly that they might be admitted into court. Here are some of those videos:
Side by Side analysis
Music Theory analysis from CreativeGuitar.ca
I'd invite anyone to post additional videos, links or thoughts. Personally, I like Coldplay and I don't want to believe they did this... but from a legal perspective, it's going to be an uphill battle. Let the games begin.
I'm not quite ready to comment on this from a legal standpoint, but I wanted to post some of the side by side comparisons of the song and some commentary from music professionals (who have also posted videos on youtube giving their opinions). It's been postured that these videos could be Coldplay's downfall, and even possibly that they might be admitted into court. Here are some of those videos:
Side by Side analysis
Music Theory analysis from CreativeGuitar.ca
I'd invite anyone to post additional videos, links or thoughts. Personally, I like Coldplay and I don't want to believe they did this... but from a legal perspective, it's going to be an uphill battle. Let the games begin.
Tuesday, May 26, 2009
The Jon & Kate Plus 8 Disaster
If you have a TV, it's almost impossible that you haven't seen TLC's Jon & Kate Plus 8 or heard about their recent marital problems and media woes. If you haven't, google it, because I'm not touching that train wreck with a ten-foot poll. I've followed the show since the beginning, and I have very strong feelings about this situation and I don't want to jump on my soapbox about it... so I'm attempting to take a more objective, legal angle on the discussion.
I stumbled across this really interesting article on Examiner.com, written by Sammy Gomez. While the articles doesn't get into much detail about the legalities of child "stars" and royalty payments, he definitely brings up an interesting topic that may be a hot topic of debate as the kids grow older: Should each child be getting compensated separately for their roles in the show?
Now, there are a few things of note here. First, Gomez points out that we don't actually know whether or not the kids are getting "paid" in their own right. Those contracts are private, so, with any luck, the media won't get their hands on them just yet. And although states that parents usually have the right to make decisions about their children (on TV) and their money, that's not completely true. Many of those type of child entertainment contracts mandate that the money be placed in a trust that is overseen by someone other than the parents (or guardian that has a personal interest in that money). If that's the case here, whatever money the kids are making can't be touched by Jon and Kate and would be released to the child when they turned 18.
However, since, as Gomez points out, the children are not really "working," child labor laws (and the contractual arrangements that go with them) may not apply. On top of that, since the show started out so small (as a one-time special about The Gosselins), it's possible the contracts were in place long before anyone could have anticipated its enormous success; thus, some of these situations may not have been considered (although, any attorney worth their weight in gold would anticipate it). I think Jon & Kate would have been grateful (at the time) if the show made them enough money to put away a bit of a nest egg to pay the enormous cost of sending 8 kids to college. Now, their living expenses have skyrocketed with the purchase of that huge house and their new found fame, that they need the show to sustain that level of living.
It's certainly an interesting situation from every perspective; I'm trying very hard to keep it a legal perspective here.
I stumbled across this really interesting article on Examiner.com, written by Sammy Gomez. While the articles doesn't get into much detail about the legalities of child "stars" and royalty payments, he definitely brings up an interesting topic that may be a hot topic of debate as the kids grow older: Should each child be getting compensated separately for their roles in the show?
Now, there are a few things of note here. First, Gomez points out that we don't actually know whether or not the kids are getting "paid" in their own right. Those contracts are private, so, with any luck, the media won't get their hands on them just yet. And although states that parents usually have the right to make decisions about their children (on TV) and their money, that's not completely true. Many of those type of child entertainment contracts mandate that the money be placed in a trust that is overseen by someone other than the parents (or guardian that has a personal interest in that money). If that's the case here, whatever money the kids are making can't be touched by Jon and Kate and would be released to the child when they turned 18.
However, since, as Gomez points out, the children are not really "working," child labor laws (and the contractual arrangements that go with them) may not apply. On top of that, since the show started out so small (as a one-time special about The Gosselins), it's possible the contracts were in place long before anyone could have anticipated its enormous success; thus, some of these situations may not have been considered (although, any attorney worth their weight in gold would anticipate it). I think Jon & Kate would have been grateful (at the time) if the show made them enough money to put away a bit of a nest egg to pay the enormous cost of sending 8 kids to college. Now, their living expenses have skyrocketed with the purchase of that huge house and their new found fame, that they need the show to sustain that level of living.
It's certainly an interesting situation from every perspective; I'm trying very hard to keep it a legal perspective here.
Friday, May 22, 2009
Green Day Refuses to Censor Album; No Wal-Mart
I don't think any of us were surprised about this story, but Wal-Mart has refused to sell Green Day's new album, 21st Century Break Down, because the band refused to allow Wal-Mart to censor the album and sell a "clean" version. According to lead singer Billy Joel Armstrong: "There is nothing dirty about our art." You can read the entire story on Yahoo! News here.
While Wal-Mart does sell CDs with PA stickers on them, it is apparently their policy that any CD bearing the PA sticker must also allow Wal-Mart to sell an edited version of the CD. A crappy policy? Yes. Is Wal-Mart within their rights? Sadly, yes. They're a private company, and they can make any decision regarding what they will and will not sell and how they'll go about doing that.
Now, it's no secret that I'm an artist advocate, so I have an issue with Wal-Mart on a number of levels beyond the "art" aspect (which I believe no one has a right to alter). First, I sincerely believe there are times when only a well-placed "fuck you" will suffice. I watched this great segment on 20/20 a few years ago about the "necessity" of profantity. They did a social experiment with some college theater students and challenged them to find a non-profane way of getting across the same message that Rhett Butler gets across in Gone With the Wind when he says "Frankly, my dear, I don't give a damn." You had to give these kids an "A" for effort - they tried everything from "I don't care" to "I don't give a hoot." Nothing worked. Another case in point is this clip from the BBC's "Rush Hour." I don't think that's what NWA was going for.
Even if there is a way for musicians to get their message across without cussing, let's not kid ourselves - if you buy a "clean" version of a cd for your kid, do you really think they don't know what word goes where the "beep" is?? Come on now.
If parents simply educated themselves about what their children were listening to, this wouldn't be an issue. My boyfriend used to manage a video game store, who had a policy that "M" rated games could not be sold to anyone under 17. However, any adult could buy them. The following scenarios played themselves out over and over again in his store: 1) "I can't sell that to you kid, you're under 17." [Parent comes in store, screaming] "What the hell is your problem, I can't believe I had to come in here to buy this game, etc."; 2) [Parent returns, more screaming ensues] "How the hell could you sell this game to kids? Do you have any idea what's in it! I can't believe you guys sell this crap, etc." "Yes sir, I do know... which is why I couldn't sell your kid the game." If you don't want your kid exposed to profanity and obscenity, first of all, you're dreaming. However, if you insist, the only way to do so is to educate yourself and make informed decisions about the entertainment your kids are exposed to. Either you accept the content as is, or you avoid it all together. "Clean" versions are the definition of half-assed.
In summary, "Clean" versions of records hide nothing except the art. My though is: If you can't handle the fucking heat, get out of the god damn kitchen. Unconsored comments welcome.
While Wal-Mart does sell CDs with PA stickers on them, it is apparently their policy that any CD bearing the PA sticker must also allow Wal-Mart to sell an edited version of the CD. A crappy policy? Yes. Is Wal-Mart within their rights? Sadly, yes. They're a private company, and they can make any decision regarding what they will and will not sell and how they'll go about doing that.
Now, it's no secret that I'm an artist advocate, so I have an issue with Wal-Mart on a number of levels beyond the "art" aspect (which I believe no one has a right to alter). First, I sincerely believe there are times when only a well-placed "fuck you" will suffice. I watched this great segment on 20/20 a few years ago about the "necessity" of profantity. They did a social experiment with some college theater students and challenged them to find a non-profane way of getting across the same message that Rhett Butler gets across in Gone With the Wind when he says "Frankly, my dear, I don't give a damn." You had to give these kids an "A" for effort - they tried everything from "I don't care" to "I don't give a hoot." Nothing worked. Another case in point is this clip from the BBC's "Rush Hour." I don't think that's what NWA was going for.
Even if there is a way for musicians to get their message across without cussing, let's not kid ourselves - if you buy a "clean" version of a cd for your kid, do you really think they don't know what word goes where the "beep" is?? Come on now.
If parents simply educated themselves about what their children were listening to, this wouldn't be an issue. My boyfriend used to manage a video game store, who had a policy that "M" rated games could not be sold to anyone under 17. However, any adult could buy them. The following scenarios played themselves out over and over again in his store: 1) "I can't sell that to you kid, you're under 17." [Parent comes in store, screaming] "What the hell is your problem, I can't believe I had to come in here to buy this game, etc."; 2) [Parent returns, more screaming ensues] "How the hell could you sell this game to kids? Do you have any idea what's in it! I can't believe you guys sell this crap, etc." "Yes sir, I do know... which is why I couldn't sell your kid the game." If you don't want your kid exposed to profanity and obscenity, first of all, you're dreaming. However, if you insist, the only way to do so is to educate yourself and make informed decisions about the entertainment your kids are exposed to. Either you accept the content as is, or you avoid it all together. "Clean" versions are the definition of half-assed.
In summary, "Clean" versions of records hide nothing except the art. My though is: If you can't handle the fucking heat, get out of the god damn kitchen. Unconsored comments welcome.
Wednesday, May 20, 2009
Woody Allen Continues to Fight the Good Fight
Poor Woody Allen. It seems that over the years everyone has wanted a piece of him without his consent. Years ago, Allen won a lawsuit against a no-name video store who ran a print add with a Wood Allen look-alike. The man was staring sheepishly at the camera with that signature grin, hand on his chin, movies such as Annie Hall situated in front of him. Even though it wasn't actually Allen, the court ruled that the video store's ad was designed to trick the public into thinking Allen endorsed their business.
The most recent case revolving around Allen's rights of publicity involves American Apparel, a cutting-edge clothing company based in LA. In one of their billboard ads, they took a shot from Annie Hall, in which Allen was dressed up as a Hasidic Jew, without Allen's permission. The case was settled today for a cool $5 mil - dangerously close to it's court date (tomorrow), in which Allen was going for $10 MIL. There's a WSJ article about the situation here.
Publicity cases always present interesting issues for both the public and for attorneys. For example, one must be famous "enough" to invoke the rights, because you have to prove that the alleged infringer was making money off of using your image. Unfortunately, the law doesn't believe regular Joes like you and I can actually motivate consumers to buy. I'm sure this concept of publicity rights is confusing to the public, as it is confusing to PR firms, marketing firms, and lawyers alike. When can I use an image without asking?
The broad answer to this questions is: NEVER. If you're a photographer, you always get your models to sign a release. If you, consumer or business, want to use the photo, you need to clear it with the copyright owner - in this case, the photographer. However, if the photographer didn't get consent from the model, you're working with a whole new ball of wax (especially if the person is famous "enough" to invoke publicity rights).
The situation with Allen is also unique as it may have been dependent on his contract with the production company that made Annie Hall. Now, since it was his movie, there may not have been a contract involved at all. And even if there was, most production studios only get the rights to use their actors' likenesses in connection with the promotion of the film. Since American Apparel wasn't promoting the movie, it's outside of that realm and squarely within Allen's personal publicity rights.
It's definitely a nuanced area of entertainment law, but one that should not be taken lightly. It's fairly easy to seek licensing rights if you have an attorney on your side that is familiar with the process and negotiations. Believe me, the upfront cost pales in comparison to the back end cost of litigation (not including your company's name being dragged through the mud, etc).
The most recent case revolving around Allen's rights of publicity involves American Apparel, a cutting-edge clothing company based in LA. In one of their billboard ads, they took a shot from Annie Hall, in which Allen was dressed up as a Hasidic Jew, without Allen's permission. The case was settled today for a cool $5 mil - dangerously close to it's court date (tomorrow), in which Allen was going for $10 MIL. There's a WSJ article about the situation here.
Publicity cases always present interesting issues for both the public and for attorneys. For example, one must be famous "enough" to invoke the rights, because you have to prove that the alleged infringer was making money off of using your image. Unfortunately, the law doesn't believe regular Joes like you and I can actually motivate consumers to buy. I'm sure this concept of publicity rights is confusing to the public, as it is confusing to PR firms, marketing firms, and lawyers alike. When can I use an image without asking?
The broad answer to this questions is: NEVER. If you're a photographer, you always get your models to sign a release. If you, consumer or business, want to use the photo, you need to clear it with the copyright owner - in this case, the photographer. However, if the photographer didn't get consent from the model, you're working with a whole new ball of wax (especially if the person is famous "enough" to invoke publicity rights).
The situation with Allen is also unique as it may have been dependent on his contract with the production company that made Annie Hall. Now, since it was his movie, there may not have been a contract involved at all. And even if there was, most production studios only get the rights to use their actors' likenesses in connection with the promotion of the film. Since American Apparel wasn't promoting the movie, it's outside of that realm and squarely within Allen's personal publicity rights.
It's definitely a nuanced area of entertainment law, but one that should not be taken lightly. It's fairly easy to seek licensing rights if you have an attorney on your side that is familiar with the process and negotiations. Believe me, the upfront cost pales in comparison to the back end cost of litigation (not including your company's name being dragged through the mud, etc).
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